Da Silva v. Wakemed

• Decision Date: 14 August 2020
• Docket Number: No. 326PA18,326PA18
• Citation: 846 S.E.2d 634,375 N.C. 1
• Parties: Raymond A. DA SILVA, Executor of the Estate of Dolores J. Pierce v. WAKEMED, WakeMed d/b/a WakeMed Cary Hospital, and WakeMed Faculty Practice Plan
• Court: North Carolina Supreme Court

375 N.C. 1

846 S.E.2d 634

Raymond A. DA SILVA, Executor of the Estate of Dolores J. Pierce

v.WAKEMED, WakeMed d/b/a WakeMed Cary Hospital, and WakeMed Faculty Practice Plan

No. 326PA18

Supreme Court of North Carolina.

Filed August 14, 2020

Law Offices of Gregory M. Kash, Raleigh, by Gregory M. Kash, for plaintiff-appellee.

Fox Rothschild LLP, Raleigh, by Matthew Nis Leerberg ; and Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., Raleigh, by John D. Madden and Robert E. Desmond, for defendant-appellants.

Stephen J. Gugenheim and Anna Kalarites, Winstom Salem, for North Carolina Advocates for Justice, amicus curiae.

HUDSON, Justice.

Here, we must determine whether an internist proffered by plaintiff to provide standard of care expert testimony against three hospitalists is properly qualified under Rule 702(b) of the North Carolina Rules of Evidence. We conclude that plaintiff's expert is qualified and affirm the decision of the Court of Appeals. We also must decide whether there is sufficient evidence in the record to raise a genuine issue of material fact that the hospitalists proximately caused plaintiff's injury. We conclude that the record evidence here was sufficient and thus also affirm the decision of the Court of Appeals as to this issue.

I. Factual & Procedural History

This case began when a 76-year-old woman, Dolores Pierce, was hospitalized at WakeMed Cary Hospital from 30 October 2012 to 5 November 2012. Mrs. Pierce had been taking a daily dose of prednisone—a corticosteroid used to treat an inflammatory disorder—for years before being hospitalized. At the WakeMed Cary emergency room, she presented with fever, altered mental status, and weakness; she was presumed to have a urinary tract infection. Concerned that an infection had induced sepsis, emergency room personnel collected urine and blood cultures and a physician ordered the antibiotic Levaquin to be administered intravenously.

Levaquin is an antibiotic commonly used to treat infection. Levaquin has a "black box" warning,¹ the strongest warning required by the Food and Drug Administration (FDA). The "black box" on Levaquin warns of an increased risk of tendon ruptures in patients over sixty years old and in patients who are concomitantly taking a corticosteroid. The most prevalent tendon rupture attributable to Levaquin use is the rupture of the Achilles tendon.

Within hours of arriving at the emergency room, Mrs. Pierce was admitted to a telemetry-intermediate care floor and came under the care of physicians at WakeMed Cary Hospital, three of whom are relevant here: Dr. Jenkins, Dr. Daud, and Dr. Afridi (the hospitalists). All three of these doctors are board certified in internal medicine, and they all identify themselves as hospitalists—physicians who specialize in internal medicine in a hospital setting and care for hospitalized patients.

During Mrs. Pierce's stay, each of these hospitalists prescribed her Levaquin and continued her on a daily dose of prednisone. All three doctors testified that they were familiar with Levaquin and its "black box" warning at the time they prescribed the medication. They also testified that they were aware Mrs. Pierce was over the age of sixty and was taking a corticosteroid.

When Mrs. Pierce was ultimately discharged to a rehabilitation facility, Dr. Afridi's discharge orders included orders to continue Mrs. Pierce on Levaquin and prednisone. Per those orders, both drugs were administered through 9 November 2012 at the rehabilitation facility. Mrs. Pierce was discharged within the next few days. Roughly a week after her discharge, Mrs. Pierce's Achilles tendon ruptured, and she had to undergo tendon repair surgery. She never fully recovered and ultimately died from pneumonia and debility on 7 September 2013.

Raymond Da Silva, the executor of Mrs. Pierce's estate, brought this medical malpractice action seeking recovery for the tendon rupture and Mrs. Pierce's resulting injury and death. The only claims remaining arise from the hospitalists’ alleged medical negligence. Mr. Da Silva is thus the plaintiff in this capacity.

During discovery, plaintiff identified experts and provided the deposition of Dr. Paul Genecin as expert testimony on the standard of care in compliance with Rule 26(b)(4) of the North Carolina Rules of Civil Procedure. Defendant moved to disqualify Dr. Genecin and moved for summary judgment on the issue of proximate cause. The trial court concluded that Dr. Genecin did not qualify as an expert. Because Dr. Genecin was plaintiff's only "standard of care" expert, the trial court granted summary judgment for defendant based on plaintiff's failure to provide any evidence proving a violation of the standard of care. The trial court also granted summary judgment for defendant on the issue of proximate cause.

Plaintiff appealed. The Court of Appeals unanimously concluded that Dr. Genecin was competent to testify as to the standard of care and that his testimony sufficiently forecasted proximate cause. Da Silva v. WakeMed , 817 S.E.2d 628, 2018 WL 3978021, at *9, *11 (N.C. Ct. App. 2018). As a result, the Court of Appeals reversed the trial court's order disqualifying Dr. Genecin as an expert witness, vacated the trial court's order granting summary judgment due to lack of expert testimony, and reversed the trial court's order granting summary judgment due to lack of evidence of proximate cause. Id. at *11. Defendant filed a petition for discretionary review, which we allowed. We now affirm the decision of the Court of Appeals.

II. Rule 702(b)

A. Standard of Review

Generally, the trial court's decision to allow or disqualify an expert "will not be reversed on appeal absent a showing of abuse of discretion." State v. McGrady , 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (quoting Howerton v. Arai Helmet, Ltd. , 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) ). "The standard of review remains the same whether the trial court has admitted or excluded the testimony—even when the exclusion of expert testimony results in summary judgment and thereby becomes ‘outcome determinative.’ " Id. at 893, 787 S.E.2d at 11 (quoting Gen. Elec. Co. v. Joiner , 522 U.S. 136, 142–43, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ).

However, when the pertinent inquiry on appeal is based on a question of law—such as whether the trial court properly interpreted and applied the language of a statute—we conduct de novo review.² Here, plaintiff argues that the trial court erred as a matter of law by misinterpreting and misapplying Rule 702 and disqualifying Dr. Genecin as an expert. Consequently, we review this issue de novo. Morris Commc'ns Corp. v. City of Bessemer City Zoning Bd. of Adjustment , 365 N.C. 152, 155, 712 S.E.2d 868, 871 (2011) ("Reviewing courts apply de novo review to alleged errors of law[.]").

B. Rule 702(b)

Rule 702(b) of the North Carolina Rules of Evidence provides:

(b) In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person is a licensed health care provider in this State or another state and meets the following criteria:

(1) If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:

a. Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or

b. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.

(2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:

a. The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or

b. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.

N.C. R. Evid. 702(b) (2019). From the language of this rule, we discern the following three requirements that Dr. Genecin must fulfill in order to provide expert testimony against the hospitalists, who hold themselves out as specialists³ :

(1) Dr. Genecin must be a licensed health care provider in North Carolina or another state;

(2) Dr. Genecin must have the same specialty as the hospitalists or have a similar specialty; if Dr. Genecin has a similar specialty, his specialty must include the performance of the procedure that is the subject of the complaint and he must have prior experience treating patients similar to plaintiff; and

(3) Dr. Genecin must have devoted the majority of his professional time to either the active clinical practice of the same or similar specialty as the hospitalists and/or the instruction of students in the same specialty during the year immediately preceding plaintiff's hospitalization.

We examine the record for evidence of each of these three requirements.

C. Dr. Genecin's Qualifications

First, we note that Dr. Genecin testified in his video deposition that he is a licensed health care provider in Connecticut. Defendant lodged no objection to this testimony.

Second, we must determine whether Dr. Genecin has the same or similar specialty as the hospitalists. The record shows that Dr. Genecin is board certified in internal...